Reauthorization of the Endangered Species Act (ESA): A Comparison of Pending Bills and a Proposed Amendment with Current Law

The Endangered Species Act (ESA) protects species that are determined to be either endangered or threatened according to assessments of their risk of extinction. The ESA has not been reauthorized since September 30, 1992, and efforts to do so have been controversial and complex. Some observers assert that the current ESA is a failure because few species have recovered, and that it unduly and unevenly restricts the use of private lands. Others assert that since the act's passage, few species have become extinct, many have improved, and that restrictions to preserve species do not place a greater burden on landowners than many other federal, state, and local laws.

This report provides a side-by-side analysis of two bills and a proposed amendment that would amend the ESA. This analysis compares H.R. 3824, the Threatened and Endangered Species Recovery Act of 2005, as passed by the House; proposed House Amendment 588 to H.R. 3824 (Miller/Boehlert Amendment); and S. 2110, the Collaboration for the Recovery of Endangered Species Act.

Proponents of each proposal indicate that it is designed to make the ESA more effective by redefining the relationship between private and public property uses and species protection, implementing new incentives for species conservation, and removing what some see as undue land use restrictions. Thus, all three proposals contain provisions meant to encourage greater voluntary conservation of species by states and private landowners, a concept that has been supported by many observers. Further, all three proposals would modify or eliminate certain procedural or other elements of the current ESA that some have viewed as significant protections and prohibitions, including eliminating or changing the role of "critical habitat" (CH) (which would eliminate one aspect of the current consultation process); making the listing of all threatened and endangered species more difficult or less likely; expanding §10 permits allowing incidental take (which could incur a greater need for agency oversight and enforcement); and expanding state rather than federal implementation of ESA programs (which might make oversight more difficult). Proponents of these changes assert that tighter listing standards would enable a better focus on species with the most dire needs, and that other measures would achieve recovery of more species. Critics argue that proposed changes create gaps in the ESA safety net of protections and prohibitions.

It is difficult to assess whether, on balance, the proposals would be likely to achieve greater protection and recovery of species, or to what extent the controversies over land use constraints would diminish. However, replacing some of the protections of the current ESA with new incentives, rather than adding the new incentives to the current protections, arguably makes adequate funding of the new programs more critical to determining the outcome of the ESA.